Posted on 09/21/2001 2:15:06 PM PDT by spartan68
Fast-Moving House Bill Restricts Liberties - Much Of It Unrelated To Terror
By Dave Kopel
9-21-1
Congress is being asked to rush to pass emergency anti-terrorist legislation
http://www.cdt.org/security/010911response.shtml
written by the Department of Justice.
House Committee hearings are scheduled for Friday, Senate hearings for Tuesday, and the DOJ is demanding the bill be enacted by the end of the week.
It would be a serious mistake for Congress leaders to force this legislation into law without careful scrutiny, because much of the legislation turns out to have nothing to do with fighting terrorism. Instead, the legislation contains a host of items which have been on the bureaucratic wish lists for many years.
As we strongly support Attorney General Ashcroft and his staff in performing their executive branch duties, Congress must remain faithful to its own duties, which is to make laws carefully and correctly. Before voting for any bill - and especially for a bill on a hurry-up agenda - Congresspeople have an obligation to read the bill. When they read the proposed new DOJ bill, they will find much that is unnecessary, and more that is a serious threat to the Bill of Rights.
For example Section 406 of the bill expands the property subject to certain drug forfeiture orders. The expansion might or might not be a good idea, but it has no business being in an emergency terrorism bill.
A much larger set of non-terrorist items can be found in the wiretap proposals.
Currently, federal wiretaps operate under two distinct statutes. One statute is the Foreign Intelligence Surveillance Act,
http://www4.law.cornell.edu/uscode/50/ch36.html
enacted in 1978. This law gives broad surveillance powers to the federal government, and authorizes the issuance of wiretaps by a secret seven-judge court in Washington, D.C. Anti-terrorist wiretaps would fall under FISA, and the bill does contain several provisions to expand or strengthen FISA.
There is a separate statute, the Wiretap Act,
http://www4.law.cornell.edu/uscode/18/ch119.html
which is used for ordinary crimes. (18 US Code, sections 2510-22). This Act authorizes wire-tapping for over 100 types of crimes - ranging from homicide down to student loan fraud.
While FISA wiretaps are extremely secret, the Administrative Office of the United States Courts produces an annual Wiretap Report"
http://www.uscourts.gov/wiretap00/contents.html
which summarizes statistics about the year's Wiretap Act surveillance. These reports show conclusively that the Wiretap Act is almost wholly unrelated to terrorism. While wiretaps are up over 600% since 1980, only about 1 in 500 wiretaps involves homicide or arson, the primary terrorist offenses. About three-fourths of wiretaps are for drugs.
It's theoretically possible that a Wiretap Act interception could be used in a terrorism investigation - such as a wiretap on an American citizen suspected of creating false immigration documents. But the DOJ bill proposes a host of Wiretap Act expansions which are not limited to terrorism investigations, and which vastly increase the power of the federal government to conduct surveillance of the reading habits and correspondence of the American people.
In 1979, five members of the U.S. Supreme Court ruled in Smith v. Maryland
http://laws.findlaw.com/us/442/735.html
that the federal Constitution does not require the police to get a warrant in order to place a pen register or a "trap and trace device" on someone's telephone. A pen register records the numbers which are dialed by a particular phone; a trap and trace device records the numbers which call a particular phone. The narrow majority upholding the warrantless use of these devices explained that devices were constitutional only because they revealed so little personal information: they did not disclose the parties who conversed, or the subject of the conversation, or even whether the call was connected.
A Congressional statute formalizes federal use of pen registers, and requires judges to issue pen register orders under a "rubber stamp" standard.
The judge must issue the order whenever a U.S. Attorney requests an order.
Pen registers and trap and trace devices are much more common than wiretaps.
Last year, there were about 5,000 such devices used on Americans by federal law enforcement.
The DOJ bill would expand pen register/trap and trace power to include surveillance of Internet surfing and of e-mail. (A similar measure was included in a bill hastily passed by the Senate on September 12, with hardly any discussion.)
This means that the FBI, the BATF, the DEA, the INS, or any other federal law enforcement agency could - without a search warrant - survey a citizen's e-mail and his web-surfing. The web surveillance can include every URL which the person visits, and also includes (by virtue of including URLs created by search engines) the key words of every search the person submits.
The e-mail surveillance would not include the text of messages, but would include the to/from information, as well as the subject line of a message, and also the size of the message.
Such surveillance is far more intrusive
http://www.cdt.org/security/000404amending.shtml
that old-fashioned telephonic pen registers. If you make a telephone call to Arnold & Porter, the pen register doesn't disclose who you talked to, or how long you talked. In contrast, e-mail surveillance reveals the particular persons who communicated. Traditional pen registers, of course, disclose nothing about a person's reading habits; but URL surveillance can build an extremely detailed picture of how a person exercises his First Amendment rights - and can also disclose a person's sexual orientation, if s/he visits erotic web sites.
Even though e-mail and web surveillance reveal the intimate details of a person's thoughts and life, such surveillance is a legitimate tool for law enforcement - as long as there is compliance with the Fourth Amendment's requirement for a warrant based on probable cause. Current law allows such surveillance based on a search warrant. There is no need to abandon the warrant requirement, and there is certainly no need to toss out the warrant rule to allow searches under a statute that has very little connection with counter-terrorism.
If we want to give the federal government vast new surveillance powers for drug, pornography, and gambling laws, then let us have a full and open debate on the subject, and not deceive ourselves with the notion that this expansion is part of fighting terrorism.
Federal laws regulate the federal government, but they usually cannot, as a practical matter, control foreign governments. Many foreign governments conduct illegal electronic surveillance of American citizens, using surveillance
facilities housed in embassies and consulates. The DOJ bill would actually reward this practice by allowing the use in federal courts of surveillance illegally conducted by foreign governments. (Section 105.) The foreign governments would even be protected by the secrecy rules which apply to confidential informants.
What this does is set up a system whereby a foreign government can violate American laws by wiretapping Americans, while the American government can violate foreign laws by wiretapping foreigners, and then both governments collude to share their fruits of their joint violations of their nations' privacy laws.
The DOJ bill gives the DOJ the power to permanently detain legal aliens in the United States, in conjunction with a terrorism investigation. Notably, federal courts would be forbidden to examine these detentions pursuant to a habeas corpus petition. While arguments can be made for authorizing the detention, we should not allow a DOJ official to impose, in effect, a life sentence without parole - with no chance of judicial review. The potential for abuse is immense, and no matter how much one trusts the current staff of the DOJ, this is a power that could be used by every future Attorney General.
The Alien Acts
http://www.studyworld.com/John_Adams_Critical_Review.htm
under John Adams and the Palmer Raids
http://chnm.gmu.edu/courses/hist409/red.html
under Woodrow Wilson are only two of the many instances of Department of Justice of abuses of lawful aliens, carried out under the guise of national security, but in fact intended to stifle political debate in the United States.
Attorney General Palmer used a series of Washington bombings to attempt to eradicate what he called the "disease of evil thinking."
http://www.villagevoice.com/issues/0104/hentoff.php When the Department of Justice can imprison an alien for life - without judicial review - the potential to intimidate political speech is immense. And the American people, who are entitled to hear the broadest range of political debate, are the losers.
This extremely dangerous provision would become somewhat safer if judicial review were not forbidden. Even then, there provision would be better with a definite sunset date. Indeed, so would the entire bill. This bill is touted as an emergency wartime measure. We are going to win this war, and we should ensure that once the war is over, America is just as free as before. We should not repeat the mistakes of World War I and World War II, in which wartime emergency powers were allowed to continue into peacetime.
As immigration reform groups have documented in great detail, immigration law enforcement in this country is a joke. There are many thousands of aliens in this country who arrived in student visas, and who are no longer students. As with gun laws, properly enforcing the existing laws ought to precede calls for enacting more laws.
The proposed statute (section 302) allows a life sentence for the "terrorist offenses" - which at first blush seems unnecessary, because life sentences (or sentences of hundreds of years and more) are already available for homicide and acts of mass arson or bombing. But when one reads the statute's new definition of "terrorism" (section 309), one sees that minor offenses are suddenly turned into "terrorism" (with a potential life sentence). The definition of terrorism includes actual terrorist offenses (e.g., homicide, arson, assassination), but includes so many other federal crimes that it covers teenagers who throw rocks through a post office window (18 USC section 1361, destruction of government property, no matter how little), or human rights activists who vandalize the sign outside a dictatorship's government's office building (18 USC sec. 956, conspiracy to injure property of a foreign government), as well as many, many other non-terrrorist offenses.
I am not arguing against punishing people who commit these low-level crimes, but I am arguing against calling them "terrorists" and subjecting them to life in prison. No matter how much faith one has that the Ashcroft DOJ will not abuse this very over-inclusive definition, Mr. Ashcroft will not be Attorney General forever, and the history of the DOJ - including under the
Janet Reno,
http://www.amazon.com/exec/obidos/ASIN/0895262371/ John Mitchell,
http://beta.encarta.msn.com/find/concise.asp?ti=0101C000
and Mitchell Palmer
http://uts.cc.utexas.edu/~rjensen/vol2no5/labor10125.htm
regimes -- suggests that almost any power which can be abused eventually will be abused. The Center for Democracy and Technology has identified many more problems
http://www.cdt.org/security/010920analysis.pdf
with the bill, in addition to the ones detailed in this article. Plainly this is a very flawed bill which cannot be fixed with an amendment or two.
It is very important that our nation have all the powers necessary to win the war. America's greatest power - and the reason that the dark ages tyrants fear and envy us - is our open society. America did not panic when the British burned
http://www.jmu.edu/madison/dolleywashburn.htm
Washington, D.C., to the ground in the War of 1812, and America must not panic today.
So those google searches for galleries of naked women are going to come back to haunt me, eh?
Nazis!
And the road to hyperbole continues, on the laugh track.
- -- Ayn Rand, Atlas Shrugged , Ch. III, "White Blackmail".
Cheeeees
ALERT FROM JEWS FOR THE PRESERVATION OF FIREARMS OWNERSHIP America's Aggressive Civil Rights Organization (Subscribe/UnSubscribe instructions near the end of the message) ============================================================
September 21, 2001
We are passing on this Alert from our sister organization CCOPS:
=============== BEGIN FORWARDED MESSAGE ========================
ALERT: CCOPS TOTALITARIAN TIME: 10:19 P.M.
Tyranny Marches a Half Hour Nearer with "Bush Doctrine"
Holding our breath along with the rest of the nation, CCOPS has been waiting to see what response the U.S. government would make to the unthinkable attacks that struck the heart of America on September 11, 2001.
It was clear from the beginning that the U.S. military would have to strike fiercely against such savage enemies. As Americans, we support that -- with hopes the strikes will be just and judicious, as well as decisive.
It was less clear how fiercely the government would strike against American freedom. We were encouraged by George W. Bush's repeated assurances that he would protect, not sacrifice, freedom. Other voices -- calling for renewed imposition of intrusive, ineffective surveillance and other restrictions on freedom -- were more ominous.
On the evening of September 20, President Bush allied himself with the worst enemies of freedom. He made a seemingly innocuous -- even a comforting-sounding -- announcement. He said he had created the cabinet-level Office of Homeland Security, with Pennsylvania governor Tom Ridge as its head. (Transcript:
http://www.abcnews.go.com/sections/us/DailyNews/WTC_Bush_transcript010 920.html )
[if you mail reader splits that into two lines, remember to copy and paste the entire URL into your browser!]
Most people were utterly unaware of the significance of Bush's new bureacracy. But for anyone watching the advance of police- state policies in America, absolutely nothing could have been more ominous.
The Homeland Defense Agency is not a new idea. Conceived by a bi-partisan commission headed by former senators Gary Hart and Warren Rudman, this Clinton-era conception, "The Phase III Report Of The U.S. Commission On National Security/21st Century," is nothing less than the framework for a permanent military-bureaucratic American police state.
The new Homeland Defense Agency is the lynchpin of a plan that extensively reorganizes both the executive and legislative functions of the U.S. government. Among other things, the plan makes the National Guard a national police force. It extensively federalizes both the study and the work of science, mathematics, and engineering. It creates numerous new sub-bureaucracies. The Homeland Security agency itself is to "be built upon the Federal Emergency Management Agency, with the three organizations currently on the front line of border security-the Coast Guard, the Customs Service, and the Border Patrol- transferred to it." The plan calls for the new agency to oversee activities of the Department of Defense, as well as to assume a variety of duties now held by agencies from the Department of Commerce to the FBI.
When the plan was announced in January of this year, the media barely covered it, and shortly thereafter, the plan itself, and the government Web site created expressly for it, dropped out of sight. We found the full text of the report at only one location:
http://www.rense.com/general10/roadmap.htm
Read it and shudder as you consider how the Bill of Rights -- and your freedoms -- will be slaughtered if you remain silent now.
Do not be fooled. The purpose of this agency and the larger plan of which it is merely one part, is not to make us safer. It is to rule us -- and to put in place the iron, eternal structure of the police state. Once again, crisis has been used as a false justification of the will to power.
When we created the CCOPS Totalitarian Time Clock, we promised ourselves we'd avoid huge, precipitous moves of the clock's hands. Without extreme provocation, we'd advance and roll back the clock's digits only a few minutes at a time. The war strikes of September 11 were world shattering, and we would never seek to minimize the horror or deny the need for strong retaliation. But our government's covert strike against American liberties will have an even more devastating long term impact on millions of lives.
The clock -- and the tragic march of tyranny -- advances by a half hour.
If you really value freedom, please share this alert with everyone you know, and encourage them to go to the site and read the Hart-Rudman roadmap to your future life in a police state.
View the Clock: http://www.ccops.org/
The Liberty Crew
Original Material in JPFO ALERTS is Copyright 2001 JPFO, Inc.
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